Sham Tsz Kit's CFA Challenge on Gay Rights: How might the recent LGBTQ+ development affect the outcome?

Author: Victoria Ip (she/they) is currently a third-year Government & Laws student at HKU. She is vocal in local issues and hopes to strive for LGBTQ+ equality and protection. 

Summary: This article offers the author’s objective prediction as to whether Sham Tsz Kit (Jimmy)’s CFA Challenge on recognition of same-sex marriage and foreign same-sex marriage in Hong Kong would succeed. The article first summarises the grounds of previous and current proceedings of Jimmy, then offers a perspective in which the recent judgement of Q & Tse Henry Edward v Commissioner of Registration might give hope to Jimmy’s appeal. In the end, the author gives their prediction as to the outcome of Jimmy’s final quest.

Picture: May James/HKFP
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Main Content: 

Two years after the release of Sham Tsz Kit (Jimmy)’s first constitutional challenge on the recognition of gay marriage, the ultimate question reaches the Court of Final Appeal. The CFA is yet to decide whether overseas gay marriage should be legally recognised. While it is important to refrain from making definitive predictions regarding the ruling, the recent court decisions regarding the rights of the LGBTQ+ community may provide insight into the potential success of Jimmy’s case. This article aims to discuss how the Court might respond to the ultimate appeal of Jimmy. 

1. Jimmy’s Judicial Review Timeline

Jimmy was the first to challenge the legality of same-sex marriage in Hong Kong subsequent to the landmark ruling MK v Government of HKSAR, which confirmed that marriage, under the Basic Law and local ordinances, should include only marriages between “one man and one woman”. [1] He submitted his judicial review application in November 2018, on the grounds that the exclusion of same-sex couples from the institution of marriage and the non-recognition of foreign same-sex marriages constitute constitutional violations of right to equality and right to privacy. Bounded by the judgement of MK, only the ground of “the laws of Hong Kong, in so far as they do not recognise foreign same-sex marriage, constitute a violation of the right to equality protected by BOR22 and BL25” reaches the High Court. [2]

The Court of First Instance (CFI) held that Jimmy’s same-sex marriage lacked essential validity and hence could not be recognised as valid under Hong Kong law. CFI, by applying the observation in QT v Director of Immigration that a valid marriage in Hong Kong is restricted as “heterosexual and monogamous”, held that marital status is not a status open to couples of the same sex. The final ground denied the attempt to apply the proportionality test to prove unjustifiable discrimination. [3]

The Court of Appeal (CA) upheld the ruling of CFI that Basic Law only confers exclusive rights to marry upon heterosexual couples. [4] Furthermore, the CA dismissed the contention that the unequal treatment of same-sex couples who were married overseas, in comparison to their heterosexual counterparts, constitutes discrimination. This is because, according to the Basic Law, same-sex marriages are not constitutionally recognised, whether they are registered domestically or overseas. [5]

Jimmy was granted the leave to appeal to CFA in November 2022. [6] It will be his final chance to advocate for the recognition of overseas same-sex marriage in Hong Kong. The CFA judgement is still pending. 

For a more detailed case summary, please refer to “When will the rainbow stretch again? The first LGBTQ+ case brought to the Court of Appeal court - Sham Tsz Kit v Secretary for Justice”. 

1. Recent development of LGBTQ+ Issues

While most of the allies had felt hopeless towards the case, given that the Court is extremely reluctant to depart from MK and obiters of other landmark cases on LGBTQ+ rights like W and QT, the recent judgement of Q & Tse Henry Edward v Commissioner of Registration shone a beam of light to Jimmy’s victory. In the case of Q, CFA finally declared that the policy requirement for Female-to-Male transgender persons to undergo full Sex Reassignment Surgery in order to alter gender markers on HKID cards is unconstitutional due to violation of the right to privacy. Q’s judgement recognises transgender Hong Kong citizens’ rights to alter their gender marker, providing them full recognition of their intended gender without having to undergo full surgery. [7] 

Besides the recent judgement of Q, previous judgements on LGBTQ+ couples or individuals' rights (such as Leung Chun Kwong, Edgar Ng) supported the possibility that Jimmy may bring home an official legal recognition of his overseas marriage. 

1. Predictions to Jimmy’s CFA Challenges

Despite having personal inclination towards Jimmy’s success, I am rather reserved in saying that Jimmy has a chance to win the case for the following reasons: 

Firstly, it has been recognised in CFA, namely in W and QT, that the constitutional meaning of marriage is still confined to “voluntary union of life between one man and one woman”. CFA indeed had acknowledged the increasing social acceptance of same-sex couples, or other types of couples outside heterosexual ones, but the court still finds the marriage of heterosexual couples as the cultural fundamentals of Chinese traditional society. It could not be disputed that the importance of family and inheritance has been determinant of traditional Chinese culture, thus creating an irrefutable factor for the court to overturn. 

Secondly, CA and CFI have been slow in overruling the lower court judgements, as evidenced by Jimmy’s unsuccessful application and subsequent appeal.  MK, which is a lower court judgement, still stands strong amid being endorsed by higher courts. Possibly due to policy reasons, such as the need to raise the birth rate and alleviate ageing population, the Court has mostly been on the Government’s side unless the case concerns unjustifiable discrimination on the rights of persons that does not have anything to do with the person’s sexual orientation (see QT, Leung Chun Kwong, Edgar Ng etc). Yet, the victory in Q undoubtedly provides a much-needed impetus and raises the question of whether CFA would depart its judgement from the lower courts. 

Thirdly, the questions Jimmy raised to CFA were not particularly strong, as commented by the Appeal Committee panel. The three crucial queries pertain to whether the exclusion of same-sex couples marriage, the failure to provide alternative legal recognition of same-sex partnerships, and the non-recognition of foreign same-sex marriage amount to violations of the Hong Kong Bill of Rights and the Basic Law. In the past successful legal challenges on LGBQT+ rights, there must involve discrimination to persons compared to those in analogous positions (also known as unjustifiable discrimination). Given that the court has been affirmative in denying same-sex marriage in Hong Kong, it would be hard for Jimmy to argue plainly on the constitutional interpretation of marriage.


Bibliography [1] Para.16, MK v Government of HKSAR [2019] HKCFI 2518
[2] Para. 7, Sham Tsz Kit v Secretary for Justice [2020] HKCFI 4211
[3] Para. 7-13, Sham Tsz Kit v Secretary for Justice [2022] HKCA 1247
[4] Para. 30, ibid.
[5] Para. 72, ibid.
[6] Para. 2, Sham Tsz Kit v Secretary for Justice [2022] HKCA 1690
[7] Q & Tse Henry Edward v Commissioner of Registration [2023] HKCFA 4

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